This means that an individual is eligible to submit a Victim Impact Statement if he or she is personally effected by a crime committed by an offender who is on trial for that specific crime. Should the victim not be able to speak for themselves such as in the case of the victim dying, the victim’s next of kin is able to submit a Victim Impact Statement.
2.2 Definition of a Victim Impact Statement, America
The definition of victim impact statement in the USA according to the Women’s Justice Network “A written statement that the victim can prepare after the accused has been found guilty” (www.owjn.org/info/glossar4.htm).
In both South Africa and The United States of America the statement may be written by a third party such as a victims representative or a person who is qualified, by the court to submit one on the victims behalf. These include social workers, psychologists, counselors, criminologists and medical professionals. 2
A victim impact statement in South Africa and in the USA is submitted to the court after the offender has been convicted, but before the sentence is decided by the court. This allows the victim to express in a factual manner how the crime has affected them and allows the court to take into consideration the personal affect of the offender’s crime. This also means that an offender cannot be convicted on the emotional pleas of the victim, but that once convicted the court will take into consideration the effect of the crime in sentencing the offender.
In South African courts the victim may give recommendations for an appropriate sentence, but the judge is under no obligation to adhere to the recommended sentence by the Victim Impact Statement “Sometimes this statement may include the victim’s statement of opinion on his feelings about the crime, the offender and the sentence that he feels is appropriate.” (South African Law Commission, 82: 1997). Although in the USA the victim is not permitted to suggest sentencing some States offer more creative ways to deliver ones Victim Impact statement such as making a video tape, submitting drawings and photographs. In South Africa it seems a Victim Impact Statement is preferred to be factual and not sensational. This seems to make more sense as sensationalizing the crime may sway sentencing either way and be a less objective way of submitting the facts of the crime.
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3. COMPILING A VICTIM IMPACT STATEMENT
As mentioned above a Victim Impact Statement (VIS) may be prepared by the victim or on behalf of the victim by certain people. However it is important to note that the words expressed in the VIS should reflect those feeling and emotions of the individual affected by the crime and not the interpretation of a third party. The VIS should also not sensationalize the crime, it should remain factual and to the point. As it is the victims chance to let the court know how the crime affected them personally, it should reflect the individual’s view of the crime. It can be written and in some cases presented verbally, the South African Law Commission notes that the VIS “usually takes the form of a written statement that is presented to the court as part of the pretence report. It can however also take the form of an oral statement by the victim when decisions are made by the court on sentencing. This last format of the Victim Impact Statement is only used in some states of the United States of America” (82:1997).
The main objective of a Victim Impact Statement in both America and South Africa is to inform the courts of any economic, psychological or physical effects as well as changes in lifestyle as a direct result of the crime committed against the victim. The compiler should stick to the truth and once again remain factual as submitting a VIS means that the victim could be “subjected to cross-examination by the defense attorney or advocate in court” (HCRFOR-8 501/2006). Cross-examination by a defense attorney can be emotionally draining and hurtful, so it is in ones best interest to remain honest at all times and to not embellish the truth whatsoever.
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3.1 Compiling a Victim Impact Statement, South Africa
The Format for compiling a Victim Impact Statement (VIS) in South Africa should adhere to the following guidelines: It is of importance to identify the victim and include the name of the person writing the statement whether it be a third party or victim him/herself. Also the VIS need to be signed and dated by the person who wrote it and a statement needs to be included stating that the victim agrees to the VIS being presented in court.
The next section should deal, in detail, with the effects of the crime including any physical harm suffered. These physical injuries may need to be conferred by a medical Doctor and the Defence Attorney as well as the Judge may wish to see evidence of any physical harm reported such as medical reports.
After the physical injuries have been detailed it is important to mention any psychological effects the crime may have had on the victim. Such as new found fear, a sense of guilt (often in cases of rape and domestic violence) about the crime, any Post Traumatic Stress Disorder (often experienced after violent or fearful situations, manifesting in nightmares, fear, flashbacks and an inability to carry on everyday functioning). Also it is common for victims to feel a sense of violation after a crime has occurred and this may manifest in violence or anger.
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Changes in lifestyle are also a factor that should be detailed within the Victim Impact Statement. Such as an inability, due to fear, to drive at night or leave the house. Family relations may too become strained as a result of stress and financial loss caused by the crime, these factors should all be submitted with the Victim Impact Statement.
Any economic loss as a result of the crime should be included in the Victim Impact Statement. The loss may be a direct result such as having ones car stolen, money taken or irreplaceable family jewelry. The financial losses may also be secondary but more severe such as the inability to work after the crime due to physical or psychological harm.
These four factors that are detailed in a Victim Impact Statement are designed to inform the perpetrator of the consequences of their actions, also it allows the Judge a more personal view of the crime committed against a human being.
It is a good idea for all victims to write a rough draft first and have a third party read it over before being typed up. The Victim Impact Statement should be no longer than 20 A4 typed pages and the statement should be signed by the victim. Six copies need to be made and submitted to the court “one for the victim, one for the offender or interpreter, the original statement plus another copy for the State Prosecutor (who must submit the original document to the judge or Magistrate (Presiding Officer), one copy for the lawyer or advocate for the defence, and one copy for the compiler” (HCRFOR-8, 501/2006).
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3.2 Compiling a Victim Impact Statement, America
In America the actual format differs from state to state. Most of the states ask for a written or typed document but there is no restriction on page numbers. The Victims name as well as address and telephone numbers appear on the document. The victim is asked to provide the offenders name too. The format follows much the same as the South African procedure with regards to statement of losses and the American Code Of Criminal Procedures also makes provisions for the victim to state whether they would like to be informed of any further hearings. The victim may include a “statement as to whether or not the victim, guardian or relative wishes to be notified in the future of any parole hearings for the defendant and an explanation as to the procedures by which the victim, guardian or relative may obtain information concerning the release of the defendant from the department of corrections” (Article 56.04(a)).
The Victim Impact Statement is given to the police or the victim services agency involved. A copy is also given to the offender and the offender is allowed to question the victim about the statement at the sentencing hearing ().
It is clear that both in South Africa and America a Victim Impact statement is optional but not confidential and anyone wishing to submit one should be made aware of their rights concerning a Victim Impact statement.
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4. VALUE OF A VICTIM IMPACT STATEMENT FOR THE COURT
Since the basic reasons for compiling a Victim Impact Statement in both South Africa and America are the same both will be considered for this discussion.
At first glance it appears that a Victim Impact Statement is valuable for the court for many reasons, it gives the court a chance to hear, personally, how the victim was affected by the crime committed, and to consider the chance that the offender may recommit a crime when released. Often in cases of domestic violence or stalking a victim may continue to be a victim after the offender is released from prison and a Victim Impact Statement gives the victim a chance to outline reasons why they believe this a possibility or not. This in turn may assist the court in deciding on a sentence or whether or when the offender will be eligible for parole. It is a victims chance to tell the court and the offender how they were, and still are, being affected by the crime.
It is often noted, especially in South Africa, that the offender has more rights than the victim and therefore a Victim Impact Statement may give the victims of crime a renewed sense of hope in the criminal justice system. Victim Impact Statements help to make the processes within the Criminal Justice system more democratic and fair and balances the power of ‘victim vs offender’. The Victim Impact Statement may give the victim a sense of empowerment when dealing with the emotional rollercoaster ride of a court case against the very person that harmed them in some way.
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Victims all too often shy away from the process as it is known to be one of brutality for the victim, especially in cases of cross-examination, many victims feel the state does so much to protect the rights of the offender and none to protect the rights and interests of the victim. As stated by Combrinck et al (2002) It is necessary to balance two sets of interests: on the one hand, the rights of the person accused of criminal offences, and on the other hand, the interests of society and the rights of the persons who look to the State for protection from crime.
Certainly it would seem that the court would be more equipped to make a fair sentencing if both sides are heard? The offender is able to give an emotional plea, therefore it stands to reason that the victim should be afforded the same rights.
Victim Impact statements also allow the court to consider the crime in more personal terms, it adds value to the ‘human’ factor of the criminal justice systems and may appeal to the court to consider empathy on the victims behalf when considering the severity of the crime committed. “Proponents argue that Victim Impact Statements help prosecutors and judges experience the real impact of the crime and often result in sentences which better reflect the harm caused to the victim” (John Howard Society, 1997).
It seems that the Victim impact statement not only acts as a tool to help the judge consider the severity of the crime, but gives the victim a sense of empowerment too, or does it?
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The possible problem with the Victim Impact Statement lies in the victim’s ability to suggest a sentence for the offender. If the judge does not adhere to the sentence suggested by the victim, will the victim not feel failed by the judicial system?
Often a victim, in being able to submit a Victim Impact Statement, may have high expectations resulting in disillusionment once sentencing has been passed.
If a victim has suffered major psychological harm as a result of the crime and the sentence imposed is a light one, could the victim be subject to further psychological harm as they are so emotionally vulnerable already? Their suffering too could be compounded by cross-examination regarding the Victim Impact Statement and open the victim to a secondary form of victimization, David Kgosimore points out that this “secondary victimization occurs when a defence lawyer operates in accordance with Lake’s (1954:165) legal style of “battering and kicking the witness around not only to humiliate but also to subdue him/her” (cited: Unisa online: The Bill Of Rights in the Constitution of the Republic of South Africa). Perhaps a victim should detail this secondary victimization in their Victim Impact Statement to highlight the brutality of cross-examination.
“Opponents of the Victim Impact Statements argue that their use does little to further the traditional goals of sentencing: deterrence, incapacitation, rehabilitation and retribution” (Dugger, 1996). This stands to reason, a Victim Impact statement is made available to the offender and if the offender believes the statement had an impact on his sentence he may seek retribution in some way from his victim.
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5. CONCLUSION
Whether proponent or opponent of the Victim Impact Statement, it is still widely believed that just being able to write about or talk about the crime has psychological benefits for the victim. Also since it is a choice, and if a victim has been briefed about the process properly, they are in a position to make an informed decision regarding their Victim Impact statement and this alone gives ‘power’ back to the victim.
An evaluation of Victim Impact Statement demonstration projects in American states found that an overwhelming majority of the victims found the experience of completing the statements to be positive and would participate again (Giliberti, 1990).
I hope the same is true for South Africa.
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BIBLIOGRAPHY:
Code of Criminal Procedures. 2002. Article 56.04(a). USA Accessed from:
Combrinck. H, et al. 2002. Bail in Sexual Assault: Victim’s Experiences. Second
Research Report: Pretoria
Dugger, A. 1996. Victim Impact Evidence in Capital Sentencing: A History of
Incompatibility. American Journal of Criminal Law, 23 375-404
Giliberti, C. 1990. Study Probes Effectiveness of Victim Impact Statements.
Justice Research, notes no.1: USA
Kgosimore, D. Bill of Rights in the Constitution of the Republic of South Africa
Accessed from on 04/04/2006
South African Law Commission. 1997. Project 82. Sentencing restorative justice:
Compensation for Victims of Crime and Victim Empowerment. Pretoria
South African Law Commission. 2002. Project 107. Sexual Offences: Process and
Procedure. Executive Summary. Pretoria
Victim Impact Statements. 1997. John Howard Society, Alberta: USA
Tutorial Letter HCRFOR-8/501/2006
accessed on 10/04/2006.
